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Mediation Matters: Planning ahead for seasonal family law trends

Chief Executive, NFM

How quickly does a new year resolution flop? In an article I wrote for Mediation Matters last month, I explained one of my aspirations for 2016 related to the approach of our family court judges. In view of the successful National Family Mediation 'At-Court Mediation' government-funded pilot project, the hope was that judges would become much more willing to embrace mediation, using the powers they already have to direct people who come before courts towards alternative means of settling disputes.

No sooner had the ink dried on that article than a new set of data was released that backed the validity of the aspiration while seeming to confirm the family courts as a whole are nowhere near achieving it; or even getting close to the starting line.

Figures from Cafcass showed new private law cases in December 2015 rose by 12 per cent compared with a year earlier. November 2015 had seen a similar increase over its corresponding 2014 month.

Now, on the one hand, the rise in applications shown by these two sets of figures could be said to simply represent parents who decide to act as Christmas approaches, because they realise they haven't put in place parenting arrangements for the festive season. It's a seasonal increase, and it's to be expected, after all.

But it's this predictability that makes the apparent inability of the family courts to capitalise on the trend and divert couples to family mediation; an even greater failure than it might otherwise be.

The reflection of the seasonal increase in official data further confirms the view that and other mediators have long held - and long trumpeted to the government and others - that family courts simply don't take serious enough the opportunities that present themselves at that time of year to push people towards mediation. At any time of year, in fact.

The truth is that the courts have the power to help change the culture of divorce by diverting couples towards a Mediation Information and Assessment Meeting, but are not making best use of this.

The fact that encouraging people to mediate instead of slugging it out through the courts is, in fact, government policy, marks this anomaly as more remarkable still.

Anecdotal evidence mediators hear time and time again is that, up and down the country, there are family court judges who are allowing separating couples to self-certify without giving their case proper scrutiny.

This cannot be allowed to persist. If it does, then what chance on earth is there for the culture change that family mediators and government ministers seek?

The Ministry of Justice has recently shown that it is alert to at least one seasonal family law trend: wisely running promotional campaigns aimed at helping couples understand the benefits of mediation during 'Divorce Month' January last year and this.

Wouldn't it be useful for ministers to take a similar seasonal approach to bringing judges into line?This coming summer, when Christmas 2016 starts to loom, the increase in court arrangements being sought by separating couples could be anticipated, predicted, and planned for with new or refreshed guidance to judges about government policy ... and the judges' duties and powers.

Family mediation Minister Caroline Dinenage has a key role in this – having it in her gift to ensure judges are taking family mediation as seriously as all the professionals in all the Family Mediation Council member organisations. We look forward to it.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing.